Roberts v SSAFA/MOD: Governing Law in a Contribution Claim

[2019] EWHC 1104 (QB)

Judge decides which law governs contribution claim against German Part 20 defendant

The English claimant brought a claim in England against the English defendant for alleged negligence which took place in Germany. The English defendant issued Part 20 proceedings against the German Part 20 defendant. The English defendant based its claim on the Civil Liability (Contribution) Act 1978 (and such a claim was not time-barred). However, the Part 20 defendant argued that German law applied to the contribution claim, and under German law such a claim would be time-barred.

The preliminary issue to be decided was therefore whether the English 1978 Act always applies to all proceedings for contribution which are brought in England and Wales. Soole J has now held that it does, although he rejected the argument that the Act applies simply because the claim is brought here. Lord Sumption in Cox v Ergo Versicherung (2014) held that there is '…a presumption against extraterritorial application which is more or less strong depending on the subject matter".

Nevertheless, Soole J went on to find that 1978 Act does contain private international law rules for the purpose of identifying the circumstances in which the English Court is to apply the Act to cases involving foreign elements. Those rules lead to the implication that the 1978 Act is intended to have overriding effect. In particular, section 1(1)(6) of the Act provides that "References in this section to a person's liability in respect of any damage are references to any such liability which has been or could be established in an action brought against him in England and Wales by or on behalf of the person who suffered the damage; but it is immaterial whether any issue arising in any such action was or would be determined (in accordance with the rules of private international law) by reference to the law of a country outside England and Wales" and section 7(3) provides that "The right to recover contribution in accordance with section 1 above supersedes any right" (which the judge held included any right of contribution which would otherwise arise under foreign law).